Fair Use in The Netherlands - A Renaissance?

Abstract

In the course of implementing the EC Copyright Directive, the Dutch legislator decided to maintain a closed system of carefully-defined copyright limitations. This decision, on the one hand, reduces flexibility in the field of limitations when compared with open systems resting on a set of abstract factors, such as the US fair use doctrine. On the other hand, it may be expected to outweigh the disadvantage of slow legislative reactions to rapid technological change by enhancing legal certainty. With Dutch courts invoking the EC three-step test to supersede the detailed domestic rules governing limitations, however, the alleged advantage of enhanced legal certainty can no longer be realized. In consequence, the Dutch limitation infrastructure is in a lamentable state. It provides neither sufficient flexibility nor sufficient legal certainty. Hence, the time is ripe to reconsider the option of introducing a fair use clause that would offer at least more flexibility.

Keywords: intellectual property, copyright, fair use, three-step test, copyright directive, flexibility, legal certainty